Edison Electric Light & Power Co. v. Merchants' & Manufacturers' Electric Light, Heat & Power Co.

Opinion bv

Mb. Justice Mitchell,

This decree must be reversed for want of any proper finding of facts upon which it can be sustained. The gravamen of the bill is that the complainant being in the lawful exercise of its franchises with the consent of the city, is interfered with at present and in danger of further interference in the future, by the defendant placing its wires so as to cross or run between, through and among the plaintiff’s wires in dangerous proximity thereto, and through the space already occupied by plaintiff, and secondly through adjacent space necessary to the plaintiff for the growth and future operation of its business. The answers of defendants deny the danger of interference by proximity of the wires, and aver that complainant is occupying an unreasonable and unnecessary space not in good faith for the purposes of its business, but with dead wires merely to obstruct and exclude any other companj'- from the streets.

The court unfortunately made no conclusive finding on these disputed points, though it did find in a general way:

1. That the defendant had strung its wires “in many places in dangerous proximity to the wires of the plaintiff company, and in some places through and between the wires of plaintiff company. That subsequently to the filing of plaintiff’s bill, a very large majority of such interferences were remedied by the defendants, but up to the time of taking the last testimony in this case, on April 14, 1898, the defendants had not so adjusted their lines as to be entirely free from interferences with the plaintiff’s line.”

2. That “ after the city of Erie had entered into the contract with the defendant for the street lighting, the plaintiff company, in order to hold the said unoccupied space claimed by it, in many places strung numerous dead wires along its poles and over street intersections, in such a way as to embarrass the defendant in the construction of said extension of its line.”

3. That the court was “ not satisfied that the defendant, in the construction of its line as it now exists, after the correction of the interferences as above stated, has inflicted any wanton, negligent or unnecessary injury to the electric lines and property of the plaintiff,”

On these findings both parties appear to be somewhat in fault, and there is no accurate determination of their respective rights, the court being of opinion that this was unnecessary for the reason set out in the legal conclusions that “ as between said plaintiff, engaged as at present exclusively in commercial and private lighting, the defendant, so far as it is engaged exclusively in lighting the public streets,by virtue of a city contract, the defendant, although holding the later franchise, by virtue of the public character of its business, has the paramount right of way, so far as is necessary to reach the places where the contract calls for street lighting, by a direct and practical route; but at the same time the defendant, in the construction of its line for the purpose of such street lighting, has no right to do the property of plaintiff any wanton, negligent or unnecessary damage, and must at all places keep its lines clear from those in actual use by plaintiff wherever it can be done without extra cost.”

This principle is wholly inadmissible. How far the city, having agreed to the plaintiff’s exercise of its franchises upon the streéts, may, under its municipal powers and duties, or under the reservations of its ordinance of consent, subsequently invade or interfere with the franchises, is not now before us. But as between two corporations exercising similar franchises upon the same streets, priority carries superiority of right. Equity will adjust the conflicting interests as far as possible and control both so that each company may exercise its own franchises as fully as is compatible with the necessary exercise of the other’s. But if interference and limitation of one or the other are unavoidable, the later must give way, and the fact that it is under contract with the city for work of a public nature, does not alter its position, or give it any claim to preference.

Moreover the standard of damages indicated by the court that the defendant in the construction and operation of its line must not do “ any wanton, negligent or unnecessary damage,” and must keep its lines clear from those of plaintiff, “ wherever it can be done without extra cost,” is altogether too broad. Equity will enjoin not only wanton or negligent damage but all interference which is not strictly unavoidable, and in regard to keeping defendant’s wires clear of those in bona fide use by the plaintiff and necessary for its business, the injunction must be absolute without regard to extra cost of other methods.

The further question raised by appellant, of the right of plaintiff to exclude defendants from the occupation of space necessary for plaintiff’s business in the proximate future, is not sufficiently presented on the facts of the case, for determination at this time. The court has found that plaintiff has occupied unnecessary space with dead wires to exclude or embarrass defendant, but how far its requirements of space for future growth may be genuine, and how near in the future is not shown.

Decree reversed with directions to rehear and determine the case on the principles of this opinion.